In November 2006, Blogging Asia: A Windows Live Report published by Microsoft’s MSN and Windows Live Online Services Business revealed that 46% or nearly half of the online population have a blog. [Blogging Phenomenon Sweeps Asia available at PRNewswire.com].
Blogging Asia: A Windows Live online report was made on MSN portal in 7 countries in Asia, namely Hong Kong, India, Korea, Malaysia, Singapore, Taiwan, and Thailand. Interestingly, the report found that 56% of Malaysians blogged to express their views, while 49% blogged to keep friends and family informed.
However, this article focuses on Malaysian law, as the Internet transcends borders and jurisdictions, so the laws of many countries may apply. In Malaysia, bloggers face legal risks that carry civil or criminal liabilities such as;
(a) copyright;
(b) trademark;
(c) defamation; and
(d) sedition.
Apart from the above, a blogger must consider other legal risks such as fraud, breach of confidentiality and misrepresentation which will not be covered in this article.
Copyrights protect the way artists or authors express their idea or fact in a work, but not the underlying idea or fact itself. Copyrights protect the originality of the work and prohibit unauthorized copying. Copyright protection is eligible for the following works, see Section 7(1) of the Copyright Act 1987:-
(a) literary works, such as written works, novels, source code in computer programs and web pages, and content in multimedia productions;
(b) musical and dramatic works, such as musical scores, plays, and television scripts;
(c) artistic works, such as drawings, sculptures, and photographs; and
(d) sound and film recordings, such as films (traditional celluloid and various video formats), music, theater or lecture records, tapes and CDs.
Unfortunately, much of the copyright infringement that occurs on the Internet goes undetected. New blogs sometimes use existing blogs for their content and this is done by copying or linking. Other than that, posting copyrighted photographs, designs, product photos or product packaging from another website is also illegal.
There are “rules of thumb” that must be followed when creating or posting content such as:- (a) create your own original image, graphic, code and words; (b) use licensed works within the scope of the permitted use established by the owner; and (c) use free images from the Internet provided the terms of the image creator are followed.
The same “rules of thumb” apply when posting scripts, as it is usually a violation of copyright law to appropriate third-party scripts. With respect to posting on one’s blog by third parties, the owner of the blog may receive an implicit license for postings made by third parties. When offering a podcast, that is, a recorded and downloadable audio file to be downloaded from blogs, it is better that the podcast does not contain copyrighted music belonging to others, thus protecting yourself from any lawsuits for copyright infringement .
If copyright protects the way ideas or facts are expressed, trademark, on the other hand, protects words, designs, phrases, numbers, pictures or images associated with products and services. .
The owner of a registered trademark enjoys the exclusive right to use his trademark in connection with his products and services. See Section 35(1) of the Trademarks Act 1976. Trademark protection gives the trademark owner the right to prevent others from using identical marks with identical or similar products. goods likely to cause confusion to the public see Section 19(1) and Section 19(2) of the Trademarks Act 1976.
How does a blogger infringe a trademark that belongs to another? An example is when a blogger posts links on logos that belong to a trademark owner. When a visitor clicks on the trademark, it will take them directly to the blogger’s blog instead of the website of the trademark owner.
Such a link may be confusing or misleading, as it poses a serious risk that the blog is in any way connected or related to the brand owner’s products and services.
Generally, the term defamation refers to a false statement made about someone or an organization that is damaging their reputation. The person posting the statement must have known or should have known that the statement was false. While the Internet provides the arena in which defamatory statements can be made or published, there is no specific legislation dealing with Internet defamation in Malaysia.
In Malaysia, the Libel Act 1957 applies to publication in printed materials and broadcast on radio or television. Since the law applies to published or disseminated materials, it applies in principle to materials such as blogs and websites posted on the Internet.
Because libel law is complex, it is necessary to distinguish whether a defamatory statement is libel (written form) or slander (spoken words). In a libel case, if the statement is found to be defamatory, then there are presumptions against the author or publisher. In the case of slander, there is usually a requirement to prove actual or special damages suffered as a result of the defamatory statement. Therefore, the slander law does not apply to blogs, since they do not fall within the scope of the dissemination of slanderous words through radio or television.
Due to the rapid changes in the Internet and the convergence of technologies, one may wonder if the courts will apply defamation law or libel law when blogs converted from text to speech format are broadcast on the Internet. However, this all depends on proving the defamation and finding the identity of the blogger, which can be a daunting task due to the anonymity of the Internet and its global reach.
Another legal risk is when blogs are used to spread false, incomplete, or misleading information about race riots or content that generates hatred or contempt for the government or ruler. In Malaysia, various offenses are provided for in the Sedition Act 1948, such as making it an offense for any person to print, publish or distribute any seditious publication; see Section 4 of the Sedition Act 1948 for other offences. It has not been judicially determined whether the provisions of the Law apply to Internet publications.
In Singapore, sedition law was applied in 2005, when the Singapore court jailed two users for posting seditious comments on the internet: two jailed for ‘sedition’ on the internet, South China Morning Post, Saturday 8 October 2005. The The South China Morning Post reported that the case is seen as a landmark case that underscores the government’s attempts to regulate speech online and crack down on racial intolerance. The two cases represented the first time Singaporeans had been prosecuted and convicted for racist speech under their Sedition Act.
Following the case of the racist bloggers, on November 8, 2006, the Singapore Government proposed changes to its Penal Code taking into account the impact of technology such as the Internet and mobile phones; see Singapore Home Office Consultation Paper on Proposed Penal Code Amendments on page 2. The amendments cover offenses committed through electronic means such as Section 298 (Using words etc. with deliberate intent to injure religious sentiments of any person) to also cover the injury of racial sentiments, Section 499 (defamation) and Section 505 (statements leading to public harm) to expand to include those “published in written, electronic or other media” see Singapore Criminal Code (Amendment) Bill on pages 8 and 20. These amendments, when passed, empower the police and state prosecutors. to prosecute those with offensive blogs- seeSections 298, 499 and 505 of the Malaysian Penal Code (revised 1997).
There are reasons authorities take blogging seriously, with half of the people who participated in the Blogging Asia: Windows Live Report survey believing that blog content is as trustworthy as traditional media and a quarter Some of the respondents believe that blogs are the fastest. way to learn about news and current affairs.
With so much reliance on blogs, content containing false, incomplete, or misleading information posted on blogs can not only cause panic, anger, contempt, or political scandal; it can also cause political and economic instability.
The Internet presents challenges to existing laws that are slow to provide adequate protection to a party regarding the use and content of blogs. Currently, no codes of practice for Internet users, including bloggers, have been proposed as part of the Internet regulatory regime currently operating in Malaysia.
Instead, bloggers need to practice self-regulation and understand the legal implications of blogging to ensure that their blogs are written responsibly and legally. To protect themselves, bloggers may provide terms of use and a suitable disclaimer to provide some degree of convenience and protection against third party postings on their blogs.
For those bloggers who are not aware of the legal risks, efforts should be made to educate and raise awareness among those bloggers. Perhaps the social responsibility falls on Internet service providers and website service providers to create a blogger code of ethics to educate their bloggers to be ethical with their readers, the people they write about, and the legal ramifications. of his actions.
First published in Current Law Journal, April, part 2 [2007] 2 CLJ I